You Need Points To Win

The phrase "earned legalization" may yet prove to be the 'New Coke' of the immigration
debate: it seemed like such a good idea -- until it didn't work. The substantive
and political difficulties that the slogan tries to finesse as the essence of 'comprehensive
immigration reform' might be better confronted directly - and resolved through a
new approach.

Somebody needs to say it plain: the 1965 Act has to be replaced. A point system is the only way to reconcile the political and substantive problems plaguing America's immigration law. Immigration Daily readers know that my article was unique in predicting of immigration reform in the last Congress that "It's Not Going To Happen", so you heard this here first, too: If this Congress tries
comprehensive immigration reform by making ever more exceptions to rules that don't
work, continuing the failed approach that has characterized immigration reform since the 1990
Act, the new law won't achieve its goals - if in fact legislation can be passed at all.

Consider what comprehensive immigration reform now looks like: a 'temporary worker'
program - except that temporary workers will be able to remain permanently, to be
sold politically by a rhetorical rejection of "amnesty" - except that those here
illegally will be able to remain legally; coupled with a commitment to an economic
justification for employment-based immigration that is an obvious subsidy to favored industries (not to mention immigration lawyers), a "gradual" commitment to enforcement
and an algebraic approach to family values. The most conservative estimates of
the outyear impact of last year's Senate bill is that it would increase the
backlogs for family-based immigration exponentially.

Surely, the last thing American immigration law needs are more promises on which
Congress will fail to deliver; more rules to which exceptions must eventually be made. Maybe.

So why not replace the long-obsolete structure of the 1965 Act with a point system
that would be uniquely American by combining family and employment, including 'temporary'
work?

Unlike the 1965 Act structure which is intelligible only to immigration experts
(and not many of them, at that), a point system recognizes that there are characteristics
which most Americans generally acknowledge "We, the People" want in immigrants:
family ties, employment, skills; even English and civics knowledge, etc.

Yet a point system can also recognize that many of these characteristics are not in themselves
sufficient to get someone a green card.

But cumulatively, they can add up - which is more than the 1965 Act does. Instead
of managing by backlog, by exceptions to the rules (like 245(i)) - by promises on which we won't deliver - a point system can establish a step by step path to permanent residency for precisely the people
we want, based on the same values on which the 1965 Act itself was drafted.

A point system can also support the rule of law, on which US citizenship depends. As Cyrus Mehta has written without visible irony, the very word "illegal" doesn't mean what it says, because there are so many ways for someone who has broken the law to remain indefinitely that it mis-states the law to say that someone could actually be violating it.

Is it any wonder that we have failed to fix the law?

The typical objections to a point system go as follows:

In a point system, governments pick immigrants. In this country, Americans pick
immigrants. Yet for the past decade, the immigration coalition of AILA, the National
Immigration Forum, EWIC, et al, have managed to define 'comprehensive immigration
reform' almost exclusively in terms of illegal workers, who by definition are not
chosen by Americans. Unlike those used by Canada, Australia and New Zealand, an
American point system would combine family, employment, and temporary worker characteristics:
so, it would not only be about 'Americans picking immigrants', but also about
Congress delivering green cards promptly.

The 1965 Act structure embodies everything America wants from immigration so altering
it would be a loss. This cuts close to the truth, which is that many who claim to want 'reform' have a stake in the way the system fails. The tacit consensus within the immigration coalition is, in fact, that their vision of immigration is distinctly unpopular. Like liberals looking at welfare reform ten years ago, the feeling is that opening up a genuinely comprehensive approach- how could reform be comprehensive without debating the underlying structure of the law? - would be a disaster. But they're wrong: Americans understand that we want legal immigration (that's why it's legal), and don't want illegal immigration (which is why it's illegal). Any 'reform' that isn't based on that fact will fail, both politically and more importantly, in practice.

The 1965 Act's oft-amended but essentially unchanged structural promises are the
best we can do. I don't think so. The core of the 1965 Act's promise are separate
but connected categories for immigration: unlimited visas to the immediate relatives
of US citizens, counted against visas eventually to the spouses and kids of legal
permanent residents and after many years to the siblings of citizens, with a complex
regulatory structure for employment visas and, since 1990, a lottery for low-immigration
sources countries. That may have been politically the best we could have done (how would we know? Nobody ever proposed anything else), but anybody who imagines this is the best possible immigration system for American values must believe Rube Goldberg was an efficiency expert.

The design of comprehensive immigration reform has already been set so we should
pass it. This is where the New Coke analogy is so telling: Politically, many immigration
advocates are making the same mistake interpreting last fall's election that all
those MBA's in Atlanta did in planning New Coke: caught up in a team developing
a product, they've confused what they see, with what they want - forgetting that
it's not the design team's dynamics but what the public wants, that counts. Advocates
have been nearly unanimous that November's election somehow endorsed the Senate
approach to immigration reform, removing the obstacle of Republican control of Congress,
particularly in the House.

But Senators who get votes by the millions face a different set of political
demands than Representatives who get votes by the thousands. In at least 25 of
the 31 House districts in which a Democrat replaced a Republican, the winning candidate
ran to the enforcement side of the immigration divide. The oldest advice in politics
is to 'dance with who brung ya'.

So the margin of Democratic control in the House does not favor last year's shapeless
Senate approach, with a tiered amnesty, oops 'earned legalization', a guest worker
program that might, or might not have abandoned any reference to the American job
market (the drafters didn't know), a 'gradual' approach to enforcement, and (finally!)
increases in family immigration by a hybrid of algebra and immigration law that
reflected American values - if you think the law expressed in terms of calculus
is an American value.

But of course, it is the House leadership which sets the agenda and determines floor
votes, so if new subcommittee chair Zoe Lofgren, Judiciary chair John Conyers, Homeland
Security chair Bennie Thompson, and especially Speaker Nancy Pelosi choose, there can
be hearings and markups and a comprehensive immigration reform bill will be ready.

But - without a new approach, can a bill be written that will pass? Put more subtly,
how can a bill be drafted that pleases advocates, like FIRM, the Fair Immigration
Reform Movement, yet protects the dozens of House Democrats who must be re-elected
in pro-enforcement districts if Democrats are to keep their majority?

FIRM seeks to be a genuine grassroots player urging immigration reform - and it
insists that a comprehensive bill must have, among many other things, no tiered structure
for amnesty (that is, ALL foreigners living and working illegally in the US will
be eligible), and that no enforcement can be done until the verification system
is perfect.

Try running on that in the 25 Congressional districts the Democrats must hold to
remain the majority.

As if reconciling FIRM with the needs of people who actually win elections isn't
enough, President Bush has said bluntly that he opposes amnesty. Bush is not above vetoing a bill with "earned legalization" in it, especially since a large majority of Republicans in Congress, freed of any real responsibility for passing anything, have not changed their core view that amnesty is not negotiable. "Earned legalization" advocate Senator Martinez was nominated for General Chair of the Republican
National Committee - which promptly ignited a firestorm among rule of law conservatives.

So much for the politics.

The substantial problem facing Lofgren in particular, is that after 25 years of
essentially the same politics (often with the same players, at the Forum, AILA,
etc.), the nation faces precisely the same issues as it did when the Hesburgh Commission
identified them in 1981: we have too much illegal immigration, and too little legal
immigration. It is not that the substance of immigration has caused a political
impasse; it is that the dysfunctional politics of 'pro-immigration' coalitions has
prevented a substantially sound resolution.

It's not about what the design team wants.

Which brings us to the New Coke slogan 'earned legalization'. Like "temporary
workers", it's too clever by half, an attempt to leap a deep chasm in two jumps.
That's understandable (if catastrophic), of course. As every poll shows, not to mention
the election results district by district, the public has two overlapping majorities
on immigration issues. Asked about national security and enforcement, Americans
overwhelmingly demands tougher enforcement; asked about immigration and families
or the legendary 'jobs Americans won't do' (not at the wages and working conditions
offered), the public favors immigrants.

The endlessly complex discussion of how a temporary worker program will intersect with
earned legalization and "a path to citizenship" aims at blurring the distinction between two distinct populations: new workers who will enter the US legally, and foreigners who are now living and working in the US illegally.

It is not clear that this blurring is politically effective, because it divides
supporters of amnesty from opponents of guest workers, e.g., the AFL-CIO, rather
than recruiting supporters of tougher enforcement to advocate increased family visas.

So here is how a point system could be enacted to replace the 1965 Act, resolving
the political dynamic in favor of immigration: 100 points gets a green card. So
the current immediate relatives category (the spouses, minor children, and parents
of US citizens), get 100 points on a valid petition. But expand this category to
include the spouses and minor children of legal permanent residents - as the organizers
of the FIRM letter have agreed their commitment to "family reunification" means.
("Immediate relatives" status for LPR nuclear families was also in the original
Hagel/Martinez compromise in last year's Senate debate.)

That leaves the perennial conundrum of the siblings of US citizens category. This
category is misconceived, in that it does not function as 'family unification'.
(Want proof? How many of us live with our grown siblings?) Face facts: the sibling
category is a jobs network - we should treat it as such, WITHOUT eliminating its
essentially family nature. Give 50 points to each sibling on a US citizen's petition,
and add a category for LPR siblings, who would get, say, 20 points.

But because sibling immigration is an employment network, temporary workers should
not be considered for permanent residency separately from their family ties in the
US. Someone who gets one of President Bush's 'temporary' visas should get 20 points
toward permanent residency for every year they work legally in the U.S.

And points acquired in one category should be combined with points from another:
a US citizen's sibling with 50 points on that petition, would have 70 points after
their first year of legal work in the US.

The strong support for Americanization expressed by Senator Alexander and others,
urging English acquisition, civics knowledge and military services advance someone
for legal permanent residency and citizenship, should be enlisted in a structure
for immigration policy that directly connects incentives to goals. Give 10 points
toward permanent residency for English and civics competence; as many as you like
for an illegal resident who volunteers for military service. A 'temporary' worker
who has a US citizen brother could get a green card in as little as two years, instead
of the 15-20 anticipated by the current debate - and in a manner that is not only
more intelligible to ordinary Americans, but also more consistent with our values.

Leaving the 1965 Act's structure will finally enable a new foundation for immigration policy, restoring the Ellis Island model instead of constantly adding rickety staircases to nowhere and pathways to waiting lists.

There are potentially powerful political forces who have been left off the design team: state and
local governments, for example. Cities like Baltimore and states like Iowa recognize
that their future is new Americans - Baltimore has already reversed a half-century
long decline in its population by becoming the first city in America to deliberately
attract immigrants.

Surely, House immigration chair Lofgren can see some political value in building
bridges to new Maryland Governor Martin O'Malley (the former Mayor of Baltimore),
and Iowa Governor Tom Vilsack, who is running for President.

Why not authorize states and local governments to sponsor foreigners for permanent
residency?

That leaves the ultimate problem in immigration politics: how to reward those who follow the rules, and not those who break them. A point system can do that, too, but the 1965 Act structure cannot.

Even the long-snarled debate over worksite enforcement, exemplified by the recent
raids in Swift meatpacking plants in six states, presents a knot that could
be sliced through.

The fact is, the private sector can do worksite verification in precisely the same
way that certified public accountants do taxes. Why not have Congress direct DHS to certify private companies that provide worksite verification of employment eligibility under immigration law,
and requires that employers which use such certified verification services be first
in line to hire workers with new temporary workers?

That way, employers will have an incentive to do their I-9s right, not merely out
of fear that they will be fined or embarrassed (and deprived of their workforce)
the way Swift has been, but for the most effective reason of all: they GET something
for it - temporary workers.

Smart enforcement can generate synergy with a point system: simply provide
that workers who break the law, lose their points toward permanent residency. Instead of the spouses and kids of green card holders breaking the law to obey marriage vows and family values, the law would actually support universally recognized morality plainly.

And instead of the siblings of US citizens and legal permanent residents breaking the law to get jobs, they would be obeying the law to keep on toward their own green cards, which would be ever closer as they work, learning English and civics.

And those workers will have an incentive to comply with the law, because it will
REWARD them to do so - and penalize them if they don't.

With a Presidential election (and a potential veto of an amnesty bill) coming up, the political myopia of continuing in the same dreary round of exempting a from b in order to increase c, d, and e; of H-1Bs and H-2As, while the bread and butter of immigration lawyers, is exemplified in Senator John Kerry's response to a question about immigration during the 2004 debate. Instead of talking about the values that ought to be central to immigration - patriotism, our history, family, Ellis Island - Kerry's first words were: "I support earned legalization."

He lost.

A point system will be a lot easier to sell the goodhearted American people on -
including their representatives in Congress - because it is not about jargon, but about values. Opposing it would require explaining precisely which values reflected in the point system are NOT
American: Clarity? Family? Americanization? Citizenship? The rule of law?